Trial hears of ‘culture of indifference’ in use of solitary confinement

Most correctional officers have become indifferent to the prison inmates they watch over, and use far more force than they did in the past when putting prisoners into solitary, former deputy prison warden Robert Clark testified recently at the beginning of what is expected to be a nine-week trial at B.C.’s Supreme Court.

Clark’s Friday testimony is part of a lawsuit that began July 4, filed by the British Columbia Civil Liberties Association and the John Howard Society, against the federal government over its policy on solitary confinement in prisons.

The policy is inhumane, discriminatory (because it’s used more frequently for Indigenous and mentally ill inmates) and unconstitutional, depriving prisoners of protections regarding of security of the person, arbitrary detention and access to counsel, the lawsuit says.

The two groups launching the suit are represented by renowned human rights lawyer Joseph Arvay.

“This is the first major and systematic challenge to administrative segregation on constitutional ground in Canada,” he said.

Arvay says the lawsuit is seeking a policy change at the federal level, mandating no segregation at all for mentally ill inmates and hard caps on what’s known as administrative segregation (for prisoners in danger of harming themselves or being harmed by other inmates) of 15 days, and no more than 60 days in one year, with external administrative adjudicators to monitor the process.

He said he doesn’t object to disciplinary segregation for inmates who break rules because that process already has a 30-day hard cap and an adjudication system.

Clark, who spent 30 years as a correctional officer, wrote a damning book after retirement about the prison system called “Down Inside”, in which he blows the whistle on what he saw as the damage caused by solitary confinement — especially for the mentally ill inmates he said make up 40 per cent of the prison population.

He testified that in the earlier part of his career, prisoners would be talked down by guards from initial resistance to voluntarily entering solitary. By the time he left the system in 2007, he said, SWAT-like teams armed with shields, batons, handcuffs and pepper spray were routinely forcing prisoners to the ground and into restraints at the first hint of struggle.

“I find the rush to force highly problematic,” Clark told the court. “It’s far too frequent and it’s had in the past some highly unfortunate consequences.”

Clark’s account of life in solitary was similar to testimony offered Monday by Andre Blair, who has spent most of his adult life in prison. He testified by videolink from Beaver Creek medium security prison.

Convicted in 2008 for murder while he was on parole for weapons and drug charges, he’s been in four different Ontario prisons and has done stints in solitary ten times. At one point, he spent 363 days in what’s known as ‘administrative segregation’.

In an affidavit he describes his year in segregation at Millhaven: “I was usually alone in my cell for 23 hours every day … It was very small and dirty. If I sat on my bed, my knees almost touched the desk bolted to the opposite wall.”

Blair had been attending school in the prison’s general population. But in solitary, “my teacher … would hand me school work though the meal slot in my door once a week.”

Blair spoke to court about his worst time in solitary confinement, after he was accused of carrying drugs following a visit from his common-law girlfriend. He was put in a dry cell with no toilet or running water. The purpose was to allow guards to prevent him from flushing away any drugs he might have swallowed or hidden in his body. When he needed to use the toilet, he’d have to strip naked and be escorted to a bathroom — where guards would watch through a window.

He said he spent six days in the dry cell and finally falsely confessed to swallowing two pellets of cocaine. His stomach was X-rayed; no drugs were detected, he said, but because, “according to them, I made a mockery of them, made them look like fools,” he was then put into a regular segregation cell and remained there for another 79 days.

The federal government unsuccessfully tried to stop the trial after it finally tabled Bill C-56 days before Parliament rose in June for its summer break. The proposed legislation, introduced two years ago, would limit the use of solitary confinement.

“It’s not law,” said Arvay. “And even if it was law, we would say, it isn’t good enough … It provides for a soft cap of 21 days on the first go-round and then 15 days, but it can be overridden by the warden. We would be back to where we are now where the warden has all the power. It’s just a lot of window dressing.”

The trial is expected to finish in September. Whatever the outcome, Arvay thinks the constitutionality of solitary confinement will end up going before the Supreme Court of Canada.